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McClendon v. City of Albuquerque

United States District Court, D. New Mexico

October 29, 2018

JIMMY (BILLY) McCLENDON, et al., Plaintiffs,
CITY OF ALBUQUERQUE, et al., Defendants,
E.M., R.L., W.A., D.J., P.S., and N.W., on behalf of themselves and all others similarly situated, Plaintiff Interveners.


         In DEFENDANT BERNALILLO COUNTY BOARD OF COMMISSIONERS' MOTION FOR PROTECTIVE ORDER REGARDING THE DEPOSITIONS OF DR. KENNETH RAY AND DR. RONALD SHANSKY (Doc. No. 1343) (Motion), the County asks the Court to disallow the depositions of its consulting experts, Drs. Kenneth Ray and Ronald Shansky.[1] The Motion has been fully briefed. PLAINTIFFS' AND PLAINTIFF-INTERVENERS' RESPONSE TO COUNTY DEFENDANT'S MOTION FOR PROTECTIVE ORDER (Doc. No. 1347) (Joint Response); and DEFENDANT BERNALILLO COUNTY BOARD OF COMMISSIONERS' REPLY TO RESPONSE TO MOTION FOR PROTECTIVE ORDER REGARDING THE DEPOSITIONS OF DR. KENNETH RAY AND DR. RONALD SHANSKY (Doc. No. 1350) (Reply).[2] On October 9, 2018, the Court heard arguments from counsel for Plaintiffs, Plaintiff Interveners, and the County. Based on the evidence and argument, the Court concludes that from July 28, 2016 through February 1, 2018, Drs. Ray and Shansky worked for the County as consulting experts and their opinions and reports, other than those provided to the Court's experts, are not discoverable under Fed.R.Civ.P. 26(b)(4)(D). Therefore, the Motion will be granted as to the Plaintiffs' and Plaintiff Interveners' attempts to depose Dr. Ray and Dr. Shansky, which will not be allowed. However, because Plaintiffs' and Plaintiff Interveners' pursuance of discovery through depositions was substantially justified under confusing circumstances, the Court will deny in part the County's request for sanctions.


         Rule 26(b)(4)(D) provides:

(D) Expert Employed Only for Trial Preparation. Ordinarily, a party may not, by interrogatories or deposition, discover facts known or opinions held by an expert who has been retained or specially employed by another party in anticipation of litigation or to prepare for trial and who is not expected to be called as a witness at trial. But a party may do so only:
(ii) on showing exceptional circumstances under which it is impracticable for the party to obtain facts or opinions on the same subject by other means.

         Four commonly identified purposes for Rule 26(b)(4)(D) include:

(1) Allowing counsel to obtain the expert advice they need in order to properly evaluate and present their client's position, without fear that every consultation “may yield grist for the adversary's mill”;
(2) Preventing unfairness that stems from allowing one party to benefit from the effort and expense incurred by its adversary in preparing its case;
(3) Guarding against the diminished willingness of experts to serve as consultants, and any potential unfairness to the expert; and
(4) Preventing the prejudice associated with one party calling an expert previously retained or consulted by the other side.

Kurlander v. Kroenke Arena Co., LLC, 16-CV-02754-WYD-NYW, 2017 WL 3084473, at *3 (D. Colo. July 20, 2017) (slip op.) (quoting Rubel v. Eli Lilly & Co., 160 F.R.D. 458, 460 (S.D.N.Y. 1995)). See also Brigham Young Univ. v. Pfizer, Inc., No. 2:12-MC-143 TS BCW, 2012 WL 1029304, at *4 (D. Utah Mar. 26, 2012) (unpublished) (noting that Rule 26(b)(4)(D) acts as a shield permitting parties to prepare for trial). “The rule is designed to promote fairness by precluding unreasonable access to an opposing party's trial preparation.” Durflinger v. Artiles, 727 F.2d 888, 891 (10th Cir. 1984). The most important factor in deciding whether to allow discovery in this instance is whether an expert has been clearly designated as “testifying” or “non-testifying.” Delcastor, Inc. v. Vail Assoc., Inc., 108 F.R.D. 405, 407 (D. Colo. 1985) (“The threshold issue is whether, for the purpose for which Rephidim seeks to discover this report, Dr. Lampiris falls within the category of experts expected to testify at trial, (A), or that of experts not testifying, (B).”).

         However, the confidentiality of opinions of or facts known to a non-testifying expert may be waived if the “work product of non-testifying consultants is provided to testifying experts[.]” Ecuadorian Plaintiffs v. Chevron Corp., 619 F.3d 373, 378 (5th Cir. 2010). See Chevron Corp. v. Stratus Consulting, Inc., No. 10-CV-00047 MSK-MEH, 2010 WL 3923092, at * 9 (D. Colo. Oct. 1, 2010) (unpublished) (recognizing ruling in Ecuadorian Plaintiffs and holding that when a non-testifying consulting expert provides information to a court-appointed testifying expert, protection of Rule 26 is waived as to that information); Kurlander, 2010 WL 3084473, at * 7 (noting that no Tenth Circuit case has directly held that Rule 26(b)(4)(D) protections can be waived and applying waiver standards from work product privilege).


         A. Settlement Agreement

         On June 27, 2016, the Court approved the Settlement Agreement (Doc. No. 1222-1), incorporating three Check-Out Audit Agreements. Under the Settlement Agreement, when the County believes it has sufficient evidence of compliance from the Court's experts, [3] the County can move the Court for an “initial finding of substantial compliance” as to one or more domains outlined in the corresponding Check-Out Audit Agreement. (Settlement Agreement (Doc. No. 1222-1) at 3.) The Court must then decide whether to find “initial substantial compliance” based on “the experts' reports and other evidence presented by the parties.” (Id. at 4.) After the initial determination of substantial compliance for a domain, the Court must set a “period of self-monitoring for each domain which the Court determines is a sufficient period to reach sustained substantial compliance based upon the complexity of the domain[.]” (Id. at 5.) At that time, the Court's experts must develop “self-monitoring protocols” for the County. (Id.) During the period of self-monitoring, the County must submit quarterly reports to counsel for Plaintiffs and Plaintiff Interveners and to the appropriate expert. At that point, counsel for Plaintiffs and Plaintiff Interveners will be compensated for limited on-site monitoring of conditions at MDC.[4](Id. at 7.)

         At the end of the period for self-monitoring, the Court's expert must conduct a CheckOut Audit and make findings of compliance, partial compliance, or non-compliance for each domain. (Id.) Based on the County's self-monitoring reports as well as the expert's proposed findings from the Check-Out Audit, the Court must then determine whether the County has achieved “sustained substantial compliance” as to the domain. After that finding, “all provisions of extant orders related to that domain will be vacated.” (Id. at 9-10.) When the Court finds “sustained substantial compliance” for every domain, the parties must “jointly request that the Court enter a permanent injunction pertaining to the Bernalillo County jail system.”[5] (Id. at 11.) At that time, Plaintiffs and Plaintiff Interveners “agree to move the Court for dismissal of all claims with prejudice.” (Id. at 10.)

         Under the Settlement Agreement, contempt motions must be “filed on a timely basis, after mediation, and be based on the requirements of this Agreement and the substantive requirements set forth in the Check-Out Audit Agreements.” (Id. at 12.) Before submission to the Court, the parties must mediate any requests for modification of the Settlement Agreement or alleged breaches of the Settlement Agreement. (Id. at 14.) Mediations are conducted by either a United States Magistrate Judge or Special Master Alan C. Torgerson. (Id.)

         Other than the Motion, there are no pending motions in this case, and the County has not yet requested an initial finding from the Court of substantial compliance as to any domain.

         B. Events Relevant to the Motion

         On June 28, 2016, one day after the Court approved the Settlement Agreement, the County entered into a two-year Professional Service Agreement (PSA) (Mot. Ex. A) with Dr. Ray's company Kenneth A. Ray Justice Services, LLC to provide “McClendon Litigation Compliance and Sustainability Monitor(s) Services which include six (6) bi-monthly visits for each provider (30 days on-site) and 30 off-site work days[.]” (Id.) Dr. Ray specializes in use of force and other security issues. Dr. Shansky, a subcontractor, specializes in medical and mental health care. The PSA term was from July 1, 2016 through June 30, 2018 at a cost of $300, 000. (Resp. Ex. 3.) The PSA governed three subjects of MDC compliance: (1) use of force; (2) mental health; and (3) medical services. (Mot. Ex. A.) The PSA contained a confidentiality provision stating: “Any confidential information provided to or developed by the Contractor in performance of this Agreement shall be kept confidential and shall not be made available to any individual or organization by the Contractor without the prior written approval of the County.” (Id. at ¶16.)[6] Under the Request for Proposals (RFP) (Mot. Ex. B), incorporated into the PSA, Drs. Ray and Shansky were required to prepare reports including: audits of medical charts; review of MDC Medical Quality Management Data Matrix; review of all Clinical data; recommendations for policy changes; and meetings attended. In the RFP, Dr. Ray's title was the “McClendon Litigation Compliance and Sustainability Use of Force Monitor, ” and Dr. Shansky's title was the “McClendon Litigation Compliance and Sustainability Medical and Mental Health Monitor.”

         In the RFP, Dr. Ray's position was described as “Litigation Consultant to report to the MDC Director, County Legal, County Manager, or their designees.” (Mot. Ex. B at 21.) Dr. Shansky's duties as the subcontractor for medical care included (1) monitoring “compliance in accordance with McClendon Settlement Agreement, … and report[ing] any deficiencies to MDC Director, County Legal, County Manager, or their designees[;]” and (2) serving “on the policy review committee, act[ing] as an independent reviewer for all morbidity and mortality reviews, [and] approv[ing] and recommend[ing] to the MDC Director, or their designee, any changes to current manuals or forms prior to their implementation.” (Id.) Dr. Shansky could request that “the Medical and Mental Health Services Administrator generate a corrective action plan in response to data gathered by the Mental Health Service Provider or monitor indicating an unusual trend or decline in performance by the Medical and Mental Health Serviced [sic] Provider.” (Id.)

         Under the RFP, Dr. Ray's duties as the Compliance Monitor for use of force included (1) reporting “to the MDC Director, County Legal, County Manager, or their designees[;]” (2) assisting “in the development and implementation and evaluation of strategic court-ordered reforms to the Use of Force policies and programs[;]” and (3) monitoring “use of force processes at MDC, perform[ing] audits, and meet[ing] with administrative and line staff of the MDC.” (Mot. Ex. B at 22.) In the section describing basic qualifications and experience, the RFP asked candidates to “[d]escribe your experience in positive collaboration with plaintiffs, defendants, court monitors, internal and external stakeholders.” (Id.)

         In his affidavit, Plaintiff Interveners' counsel Mr. Peter Cubra testified that sometime in mid-2016, “Dr. Ray called me and told me that he and Dr. Shansky were working for the County to advise the County how to comply with the court orders in McClendon and he asked if he could interview me about my views with respect to compliance with the court orders in McClendon. I agreed.” (Resp. Ex. 1, Cubra Aff. ¶ 6.) Mr. Cubra recounts several “routine” correspondences and meetings with Drs. Ray and Shansky from September 2016 through December 2017. (Resp. Ex. 1, Cubra Aff. ¶¶ 8-13.) During that time, Mr. Cubra “believed, with good reason, that Drs. Ray and Shansky had been hired as the County's internal monitoring experts, to assist with designing and implementing improvements in the operation of the jail system, not as opposing defense experts.” (Id. ¶ 10.) Mr. Cubra also “assumed that counsel for County Defendant were aware of all of these meetings.” (Id. ¶ 19.)

         After Dr. Greifinger's November 2016 site visit to MDC, Plaintiff Interveners' counsel sent an email to counsel for the County asking for copies of every document that either Dr. Ray or Dr. Shansky had provided to any County employee “that contains any assessment of or comments about the MDC. That includes, but is not limited to, the documents that they provide to Dr. Greifinger.” (Mot. Ex. C.)

         On November 23, 2016, the County's counsel, Ms. Taylor Rahn, responded that reports generated by Ray and Shansky were protected from disclosure because Drs. Ray and Shansky were “experts employed only for trial preparation.” (Mot. Ex D.) However, Ms. Rahn also stated in the letter, “[i]t has not been determined whether Dr. Ray or Dr. Shansky will testify in this matter…. At this point, Drs. Ray and Shansky are not required to produce an expert report.” (Id.) Ms. Rahn quoted provisions in Rule 26 governing testifying and non-testifying experts. (Id.) Although Ms. Rahn concluded that this Court's ruling required that only internal reports given to the Court's experts must be disclosed, she informed opposing counsel that the County would not produce reports that were not given to the Court's experts. (Id. at 3.) Ms. Rahn sent a copy of her November 23, 2016 letter to Drs. Ray and Shansky.

         On November 28, 2016, Mr. Cubra sent an email to Ms. Rahn stating he believed that the County hired these experts under a County Ordinance[7] allowing experts to work with the MDC Facility Management Oversight Board (Oversight Board). (Mot. Ex. D.) On November 29, 2016, Ms. Rahn replied to Mr. Cubra's email and attached a copy of the PSA. (Mot. Ex. E.) In the reply email, Ms. Rahn stated that Drs. Ray and Shansky were retained “as litigation experts in the McClendon litigation. They were not hired to be the experts for the oversight board. … [F]or now, the oversight board will rely upon the reports of the Court's experts.” (Ex. E.) Ms. Rahn ended her email message by stating: “Because the contract confirms that the doctors are litigation experts, the County stands by its original response to your request for all reports prepared by Drs. Ray and Shansky.” (Id.)

         On January 27, 2017, Plaintiffs and Plaintiff Interveners filed a Joint Motion to Enforce the Interim Order Regarding Access to the MDC (Doc. No. 1265) asking for production of documents given to Dr. Greifinger during his visits to MDC in April 2016 and November 2016. In the Joint Motion (Doc. No. 1265), Plaintiffs and Plaintiff Interveners requested copies of Dr. Ray's and Dr. Shansky's internal reports. The County argued inter alia that the reports on quality assurance, including those prepared by Dr. Ray and Dr. Shansky, were protected by the “self-critical analysis privilege.” (Resp. (Doc. No. 1268) at 2.) In a March 20, 2017 Memorandum Opinion and Order (Doc. No. 1275), the Court ordered the County to produce only those documents or reports that had been given to Dr. Greifinger.[8] On April 4, 2017, the parties entered into a Stipulated Confidentiality Agreement (Doc. No. 1276) limiting access to those reports and noting that the County was not waiving its privilege associated with the documents produced. See Stipulated Confidentiality Order (Doc. No. 1276).

         In early December 2017, Dr. Ray visited the MDC, and unbeknownst to County counsel, Dr. Ray scheduled a meeting with counsel for Plaintiff Interveners and MDC management personnel. On December 11, 2017, after learning about the meeting from an MDC employee, the County's counsel, Mr. Luis Robles, sent a letter to Plaintiffs' and Plaintiff Interveners' counsel accusing them of violating Rule of Professional Conduct ...

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